JP's Guide to Age Discrimination Claims

I'll just jump right in. I'm going to give you my thoughts and guidance on age discrimination. As many folks know, I'm Jonathan Pollard. I'm an employment lawyer and the founder of Pollard PLLC. We litigate employment cases. Over the next 5 to 10 years, we are going to see a tsunami of age discrimination cases. Because people are living longer and working longer. So I'm going to explain what truly constitutes age discrimination and explain what we look for in the age discrimination cases that we choose to pursue.

Identifying Age Discrimination. I'll start with the proverbial smoking guns. I once had a case against a major retail chain where a supervisor point blank stated that he wanted to bring in hot young talent and get rid of "old hags." I have had multiple other cases involving blatant, direct, discriminatory statements. You're too told. You need to retire. We need young blood in here. Anything of that variety is direct evidence of age discrimination.

But there can also be less direct statements that still carry significant weight. Example: Comments about energy. "We need someone more energetic in the role." I mean, my mom is in her 60's and she has more energy than me. So this idea that employees in their 60s or 70s aren't energetic is an ageist myth. Another example, "I'm sure you wouldn't want to work with this new technology. That would be a lot for you to learn." I've had a number of cases with comments that go in that direction. Obviously, the more direct the discriminatory statement, the stronger the claim of discrimination. So statements like "You're too old" are the strongest. But don't overlook other, less direct remarks that are still discriminatory.

Job Performance History. This is a huge factor in deciding which cases we accept. Some lawyers take age discrimination cases where they'll send a demand letter and try to get $20,000. And those lawyers may have less stringent standards for case selection. But that's just not what we do. When I'm evaluating an age discrimination case, I'm looking for a case that we can take to trial -- if that's what we need to do to get fair value for it. So in selecting cases that we are willing to take all the way to trial, we are looking for a documented history of good job performance. On that front, the best thing we can get is a recent performance review that is extremely favorable/positive. But less formal, positive feedback can still be very helpful. For example: An email praising an employee's job performance, contributions, etc. As long as it is in writing. In general, we do not accept age discrimination cases where there is a history of negative or even marginal performance reviews --- unless the employee had a long tenure with the company, years of favorable performance reviews, and the negative feedback started right before termination.

Adverse employment decision. This is where I'll offend lots of people. Real age discrimination cases (as in cases where we can get all the way to trial and win) involve an adverse employment decision or a truly hostile work environment. I'll explain hostile work environment later. For now, let's focus on an adverse employment decision. That means termination, demotion, salary cut, not promoted for an opportunity you were clearly qualified for, etc. As a general rule, there is no case unless there's actually been a serious, negative change to your employment status.

Hostile work environment. This is the exception to the above. If the work environment is so terrible that it constitutes a hostile work environment. Let me be clear: General workplace drama, office politics, and typical interpersonal bullshit does not constitute a hostile work environment. A hostile work environment basically requires a work environment where there is terrible, consistent harassment. In the age discrimination context, that means age-related harassment that is constant, terrible, pervasive, etc. 95% of people who claim they're "in a hostile work environment" are not --- they don't understand what that legal term actually means.

Retaliation. If you report age discrimination to HR or a supervisor and are subsequently terminated, demoted, unfavorably reassigned, etc -- That is a separate claim for retaliation.

Severance agreements. Employees over 40 have special protections when it comes to severance agreements. An employer must give you 21 days to consider the severance offer (or 45 days if the termination is part of a layoff of more than one employee). After signing, you then have a 7-day window where you can revoke your signature.

Access to information. If you are 40+ and terminated as part of a layoff or reduction in force (2 more more employees terminated), you actually have the right to know (1) the job titles and ages of those who were laid off (2) the job titles and ages of employees retained in the same department and (3) the factors used to determine who was laid off. Companies are supposed to give you this information in connection with any proposed severance agreement. That makes sense. This information allows you to evaluate the severance agreement and evaluate whether or not you were discriminated against on the basis of age.

My latest YouTube video discusses some of this. I'll post another YouTube video this week on Part II of my ADEA discussion.

Jonathan Pollard is the founder of Pollard PLLC. Pollard and his colleagues are employment lawyers and have litigated, arbitrated, and mediated hundreds of employment disputes. The firm has offices in Fort Lauderdale, Miami, and St. Louis and can be reached at 954-332-2380.

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